What powers does Congress have over the federal courts?

CONGRESS VERSUS THE COURTS

However, Congress has utilized many of these basic powers to influence the Supreme Court and the lower Federal courts. The Constitution is silent on the number of associate justices, so Congress in the 1789 Judiciary Act provided for a Supreme Court of a chief justice and five associate justices. The number was gradually increased until it reached a total of ten in 1863, but with Andrew Johnson's accession to the Presidency, the number was reduced to seven, so that Johnson could not fill any vacancies that might occur. After he left office, Congress increased the number to nine where it has since remained.2 Although it ultimately was not enacted by Congress, President Roosevelt's ``Court-packing plan'' to enlarge the membership of the Court by one justice for each justice over age 75 has been cited as the underlying reason for the Court's changed course in the late 1930s, the ``switch in time that saved nine.''3 On another occasion, Congress used its authority to determine the time and place of sessions of the Court in order to postpone for 14 months a Court session to forestall a constitutional attack on the repeal of the Judiciary Act of 1801.4

In a 1789 Act, Congress created an interlocking system of district courts and circuit courts to receive some of the possible original jurisdiction that could have been vested and commensurate appellate jurisdiction. A criticized provision of the Act was the requirement of ``circuit riding'' by the justices and the composition of the circuit courts by justices and district judges. The outgoing Federalist Congress in 1801 reorganized the district courts and created six circuit courts composed of three circuit judges each. When the Jeffersonians came to power, this Act was repealed, the new courts abolished, and no provision made for the newly appointed judges. If the 1801 repeal precedent is valid, the ``good behavior'' tenure provision could be circumvented by an abolition of courts, but no doubt the price is too high to pay.5

Reversal of Court Decisions. Political action does not take place in a vacuum. Any congressional enactment or effort to enact that has an adverse impact on the courts is usually directed to altering or reversing a decision of the Federal courts, not necessarily a Supreme Court case,6 although, of course, Supreme Court cases are typically the most noteworthy.

Constitutional Decisions. Constitutional decisions by the courts limiting legislative powers are reversible, strictly speaking, only through amending the Constitution, a difficult and time-consuming process. Yet, that result has been achieved in the eleventh amendment,7 the first sentence of 1 of the fourteenth amendment,8 the sixteenth amendment,9 the nineteenth amendment,10 and the twenty-sixth amendment.11 However, the usual result of efforts to overturn constitutional decisions by amending the Constitution has been failure. One need only think of recent movements, such as the drive to amend the Constitution to authorize legislation that would penalize desecration of the United States flag, in response to Texas v. Johnson, 491 U.S. 397 (1989), and United States v. Eichman, 496 U.S. 310 (1990).12 Earlier initiatives dealt with school prayer, legislative apportionment, and abortion. Only sustained and energetic work in Congress and in the States, complemented with vigorous public support, is capable of changing the Constitution.

A reference was made above to ``[c]onstitutional decisions by the courts limiting legislative powers'' that would need an amendment to the Constitution to overturn. The distinction was made that in many cases the courts will hold that the Constitution does not require some protection of rights or does not deny the States some power. Assuming that Congress has legislative jurisdiction to act -- and in these days of expansive interpretation of the commerce clause, 5 fourteenth amendment and 2 fifteenth amendment powers, combined perhaps with the taxing and spending authority -- Congress may through ordinary legislation counter many of these constitutional interpretations and enact laws of a constitutional nature.

For example, in Katzenbach v. Morgan, 384 U.S. 641 (1966), the Court upheld a congressional enactment that barred the application of English literacy requirements to certain classes of voters, despite an earlier holding that nondiscriminatory English literacy qualifications did not violate the equal protection clause. Congress, through its authorization to enforce the fourteenth and fifteenth amendments, ``brought a specially informed legislative competence'' to its appraisal of the effect of state legislation on rights secured by the Reconstruction amendments, to which the Court would defer. The career of this principle has been varied, and it is a highly controversial doctrine, but yet the Court continues to recognize the existence of some power in Congress to define constitutionality.13

Whatever may be the scope of the Morgan power, there can be no doubt that when Congress acts under its power to regulate commerce or enforce its taxing and spending power, perhaps adding on its Morgan power, it may impose on the States and on local governments substantively higher constitutional standards than the courts would. It is in this context, for instance, that Congress is now considering the so-called freedom of choice bills, S. 25 and H.R. 25, to apply to the States the standards of Roe v. Wade, 410 U.S. 113 (1973), as they existed prior to more recent Supreme Court decisions. Another congressional initiative, the bills to restore the interpretation of the free exercise of religion clause to its meaning prior to Oregon Employment Division v. Smith, 494 U.S. 872 (1990), (see S. 578 and H.R. 1308), probably depends on Morgan as well as the commerce clause. 14 Congress also may simply persist in enacting somewhat different measures in order to probe the courts' willingness to stand against what may be the popular will. An example of this is the 1930s and Depression legislation. The Supreme Court had restrictively interpreted the meaning of the commerce clause, allowing Congress only to reach interstate movement, but faced with continued legislating, with President Roosevelt's ``Court-packing plan,'' and with severe economic distress, the Court, in a series of cases, gave in and permitted Congress to regulate not only every step in the course across state lines but also activities that occur only within one State but ``affect'' interstate commerce.15

The Court also modifies constitutional decisions, either at the behest of Congress and the President, as in the 1930s, or in response to changed membership or changed circumstances. After all, the Court has in more than 200 cases overruled one or more precedents.16

Statutory Interpretation. Congress successfully has rejected decisions by the Supreme Court and the lower Federal courts that have interpreted Federal laws (or, on some occasions, common-law doctrinal interpretations). The cases overturned were not necessarily judicial misinterpretations of congressional intent. Each Congress is a different institution from any other Congress (just as the Supreme Court is rarely the same body from time to time), and a subsequent Congress may simply reject a decision that correctly interpreted a previous congressional intent.17 In a large number of instances, however, Congress believed the judicial decisions it was overturning were incorrect interpretations.18 A study by Professor Eskridge found that in the period 1967-1990 Congress overturned 124 Supreme Court and 220 lower court decisions interpreting Federal law.19 The Civil Rights Act of 1991 alone overrode nine Supreme Court decisions that had narrowed previous interpretations of law.

Many reasons contribute to the great increase in case overturnings. Congress, through staff, outside interests, and other means, is now more aware of decisions than it has been in the past. The political situation in the country has played a major causative role in this. The division of Congress and the President between parties means that the justices and judges who are appointed represent a different philosophy than is represented in Congress. Many decisions in and of themselves exacerbate differences between the courts and Congress.

Whether the return to control of both the Presidency and Congress by one party will lead to a decline in interpretive disagreements between Congress and the courts, especially as new judicial nominees assume the bench, will determine whether the conflict is largely political or whether it reflects a deeper division between the two branches.

FOOTNOTES

1 To prevent an excess of citations to secondary authority, we in this paper cite mainly to two basic authorities. Constitution of the United States of America -- Analysis and Interpretation, S. Doc. 99-16, 99th Cong., 1st sess. (1987)(hereinafter Constitution Annotated); and P. Bator, D. Meltzer, P. Mishkin, and D. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System (3d ed. 1988)(Hereinafter Hart & Wechsler).
2 Constitution Annotated, pp. 616-617.
3 Hart & Wechsler, pp. 39-42.
4 Constitution Annotated, p. 617.
5 Ibid., pp. 617-619; Hart & Wechsler, pp. 34-38. In 1913, Congress abolished the Commerce Court, but this time it provided for a distribution of the sitting judges to the circuit courts.
6 For example, see Robertson v. Seattle Audubon Society, 112 S.Ct. 1407 (1992), concerning the constitutionality of a law overturning decisions by a district court applying the Endangered Species Act to Pacific Northwest logging and the spotted owl.
7 The eleventh amendment overturned Chisholm v. Georgia, 2 Dall. (2 U.S.) 419 (1793). See Constitution Annotated, pp. 1427-1448; and Hart & Wechsler, pp. 1159-1249.
8 The fourteenth amendment overturned that part of Scott v. Sandford, 19 How. (60 U.S.) 393 (1857), which stated that national citizenship was derivative of state citizenship. Constitution Annotated, pp. 1467-1469.
9 The sixteenth amendment overturned Pollock v. Farmers Loan & Trust Co., 157 U.S. 429, modified on rehearing, 158 U.S. 601 (1895), holding that income taxes on certain income were direct taxes and invalid because not apportioned.
10 The nineteenth amendment conferred suffrage regardless of sex and thus overturned Minor v. Happersett, 21 Wall. (88 U.S.) 162 (1875), which had held that denial of the ballot to women did not violate the fourteenth amendment's privileges or immunities clause.
11 The twenty-sixth amendment set aside the result in Oregon v. Mitchell, 400 U.S. 112 (1970), which had upheld a congressional reduction of the voting age in Federal elections but voided it for State elections. Constitution Annotated, p. 1881.
12 For a review, see C. Tiefer, ``The Flag-Burning Controversy of 1989-1990: Congress' Valid Role in Constitutional Dialogue,'' 29 Harv. J. on Legis. 357 (1992).
13 Though imperiled in Oregon v. Mitchell, 400 U.S. 112 (1970), the Morgan doctrine has been reasserted in more recent cases. e.g., City of Rome v. United States, 446 U.S. 156 (1980). In 1982, Congress amended 2 of the Voting Rights Act, 96 Stat. 134, amending 42 U.S. Code 1973, to impose an ``effects'' test contrary to the holding in City of Mobile v. Bolden, 446 U.S. 55 (1980), and the enactment appears to have been accepted by the Court as valid. See Mississippi Republican Executive Com. v. Brooks, 469 U.S. 1002 (1984)(per curiam); Thornburg v. Gingles, 478 U.S. 30 (1986). In Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 563-566 (1990), the Court expansively asserted congressional authority to enforce the fourteenth amendment through legislative action that would violate the equal protection clause if enacted by state or local governments, a power the Court had recognized in earlier striking down a city minority preference ordinance (City of Richmond v. J.A. Croson Co. 488 U.S. 469 (1989)). See Constitution Annotated, 1817-1820, 1830-1835; and Brest, Congress as Constitutional Decisionmaker and Its Power to Counter Judicial Doctrine, 21 Ga. L. Rev. 57 (1986)(and authorities cited).
14 For an extensive discussion, see Lupo, Statutes Revolving in Constitutional Law Orbits, 79 Va. L. Rev. 1 (1993).
15 Constitution Annotated, pp. 181-190.
16 Ibid., pp. 2115-2127 (and 1990 supp.). Many of these cases involved statutory or common-law interpretations, but a significant number concerned constitutional interpretation.
17 This position is the preferred point of view of the present majority of the Supreme Court; that is, congressional overrides reflect the dominant outlook of a later Congress, not of the Congress that enacted the law the Court interprets. For example, see West Virginia University Hospitals v. Casey, 111 S.Ct. 1138, 1148 n. 7 (1991) (Justice Scalia for the Court), responding to id., 1153-1156 (Justice Stevens dissenting). Casey was overturned by 113 of the Civil Rights Act of 1991, 105 Stat. 1079, amending 42 U.S. Code 1988.
18 A comprehensive study of congressional actions taken over the last decade itemizes the decisions and the overturning laws, evaluates the reasons Congress acted, and describes the scenarios under which congressional initiatives will likely be successful. W. Eskridge, Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L. J. p. 331 (1991).
19 Ibid., pp. 335-341.

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